Proceeding in lieu of prerogative writ.
Daniel J. Brennan, J.s.c.
[21 NJSuper Page 82] This is a proceeding in lieu of prerogative writ.
The plaintiff attacks the zoning ordinance of the defendant township, in particular Article VII thereof providing as follows:
"In 'B' Residence Zones, no building shall be constructed, reconstructed, or altered on a plot with an area of less than five acres or a width of less than 200 feet or so as to be nearer than 100 feet to the line of any street upon which its plot may abut or front."
The attack is based on the proposition of the unconstitutionality of the ordinance and generally, as well, that it is unreasonable and arbitrary.
At the trial there was testimony by plaintiff's chief expert witness as to the reasonableness, in his professional judgment, of a five-acre minimum limitation.
The resolution of the legal propriety of plaintiff's attack requires, at least, a brief statement of the geographical aspect of the defendant township. The township, located in Somerset County, is a large geographical unit, the total area being approximately 24 square miles and very sparsely populated. The total population is slightly over 1,600. The land is rolling countryside and generally divided into naturally wooded areas and into farms and country establishments. At the locus in quo here the subject of dispute, it may be said that the picture presented by the court's examination, indicated that the land is more level than rolling in the general area and framed by adjacent woods, not so substantially above sea level as to be described as mountainous, but typical of many country areas that are properly described as hilly rather than mountainous.
The court feels that its first approach to the problem should be a brief summary of the more recent history of zoning. The zoning powers of municipalities were extended by Article IV, Section VI, par. 2 of the Constitution of 1947 providing as follows:
"The Legislature may enact general laws under which municipalities, other than counties, may adopt zoning ordinances limiting and restricting to specified districts and regulating therein, buildings and structures, according to their construction, and the nature and extent
of their use, and the nature and extent of the uses of land , and the exercise of such authority shall be deemed to be within the police power of the State. Such laws shall be subject to repeal or alteration by the Legislature." (The italics is by this court.)
The zoning statutes then in effect were amended by chapter 305 of the Laws of 1948 to give effect to the expansion of the zoning power. Moreover, by Article IV, Section VII, par. 11 of the Constitution of 1947, there is the obligation to construe the constitutionality of statutory ...